WASHINGTON, DC – The House Appropriations Committee accepted by voice vote today an amendment introduced by House Democratic Whip Steny H. Hoyer (MD) to the Fiscal Year 2005 Labor, Health and Human Services Appropriations bill that would prevent Health and Human Services officials from blocking the flow of information between the Office of the Medicare Actuary and Congress.

Hoyer’s amendment is in direct response to Centers for Medicare and Medicaid Services (CMS) Administrator Tom Scully’s ordering of CMS Actuary Richard Foster to withhold critical information from Congress regarding the Medicare Prescription Drug Conference Report that likely could have prevented its passage last fall.

“I believe that an episode that occurred last year did the public's faith in government a tremendous disservice, and I believe we have sent an important message here today. We have only to look at last year's Medicare vote to see how such public faith is in jeopardy.

“The undisputed fact is that through the fall and summer of 2003, the chief Medicare actuary, Mr. Richard Foster, had prepared ‘dozens and dozens of analyses and estimates’ of the legislation that were all in the range of $500 billion to $600 billion.

“But on November 22, when the House of Representatives went through a grueling three-hour early morning vote -- most (if not all) Members of Congress did not have the benefit of knowing that such higher cost estimates existed, despite the fact that repeated attempts had been made to get them.

“The public must have confidence that when their elected representatives take votes on critical pieces of legislation, that they have all the facts legally available to them. Average Americans of every political stripe, editorial boards from around the country, and government investigators all agree that the ordering of CMS Actuary Richard Foster to withhold information from Congress was grossly unethical and a violation of law. This was part of a broad campaign by Republican leaders and the Bush White House to ram through – at any price – a bill that did not have the support of the majority of members of Congress.

“As a result, Americans cannot have confidence that the Member of Congress making decisions and taking votes on their behalf consistently has all the facts and is making an informed decision. Scandals like this undermine confidence in our democracy at a time when we are trying to export democracy around the world. The American taxpayer should not be paying for, and this Congress should not be allocating funds for, such secret, bullying, and duplicitous behavior.

“The consequences of this deception are that we now have a Medicare law that I believe many members would not have voted for if they had had full information. What this amendment would simply say is, that in the future, HHS officials may not use abhorrent tactics, such as the ones Mr. Scully employed, to block information that Congress legally has a right to receive.

“This amendment will prevent a repeat of such unethical and outrageous behavior and help restore Americans’ confidence that their representatives are making informed choices that are in the best interest of our country’s future.”
________________________

Attached below is the text of the Hoyer amendment:

At the end of title II (before the short title) insert the following new section:

None of the funds appropriated in this title may be used to impede the exchange of information between the Office of the Actuary of the Centers for Medicare & Medicaid Services and Congress, including its members, committees, and staff.
________________________

In April, a Congressional Research Service analysis found that it was likely that Scully’s actions are likely to have violated anti-gag statutes and appropriations laws, but not criminal law. Specifically, anti-gag statutes protect the right of a federal employee to communicate with Congress and past Treasury Appropriations bills have contained language stating that no funds can be spent to pay the salary of someone who prevents a federal employee from providing information to the Congress.

On July 6, the Health and Human Services Inspector General concluded that estimates were in fact withheld from Congress, but that these actions did not violate any laws, thereby disagreeing with CRS's findings. The Government Accountability Office is also investigating the issue of whether federal laws were violated.